Tuesday, March 6, 2012

Should Catholic Institutions (like Catholic Hospitals) Be Forced to Pay for Employee Contraception?

Home > Politics > Religious Liberty

As the title of the blog suggests, I’m a maverick Christian, and in my maverick maverickhood of maverickness I have a maverick view on the separation of church and state.[1] I don’t believe we should have “In God We Trust” on dollar bills any more than we should have “Atheism is Factually Incorrect” on them. Of course, I believe atheism is factually incorrect and that we should trust in God, yet I also believe in applying what Thomas Jefferson called a “wall of separation between Church & State,” possibly to a greater extent than Jefferson himself did.

But that wall of separation blocks both sides. When it comes to the First Amendment of the U.S. Constitution, if some political conservatives forget that government should not be “respecting an establishment of religion” some political liberals forget the government should not be “prohibiting the free exercise thereof.” For example, if we have two religious groups on a public university where one supports gay sexuality and the other says gay sex is immoral, the government should not treat them unequally on the basis of their religious views on sexual morality (e.g. when it comes to the groups requiring voting members to subscribe to their religious values), whereas some liberals would disagree.[2] On that note we get to the topic of this blog entry: whether to force Catholic institutions like Catholic hospitals to pay for contraceptives via health insurance coverage in cases where the contraceptives serve no purpose beyond birth control.

For those of you who were unaware, at one point the Obama administration advocated a law that would require some Catholic institutions, like hospitals, to pay for employee contraceptives. Some other politically liberal entities, such as the ACLU, supported this decision. The Catholic church thinks contraception, at least when used for the purpose of birth control (in some cases it can be used for some other medical reason, e.g. for polycystic ovarian syndrome), is immoral, and are less than pleased with the idea of the government forcing Catholic institutions to pay for it. I believe there’s nothing immoral with contraception and I think that a Catholic institution’s health insurance plan should indeed pay for employee contraceptives. I’m just not in favor of the government forcing Catholic institutions to do that when it violates their religious convictions.

At some point of course we have to curtail religious liberty. If a man killed infants as a sacrifice to the god Moloch, such a person obviously ought to be arrested even if his religion required him to do the killing. Shouldn’t we thus be careful about to what extent a religious institution be allowed to neglect health care? If we allow the employee health insurance of Catholic hospitals to not to pay for contraception, where does it end? If we allowed a religious institution to refrain from any health coverage they pleased, we could conceive of this yielding some rather undesirable results. Suppose a faith-based store said they didn’t want to provide any health care at all on the grounds that they believe God wants us to just trust in God and avoid medical care altogether. Shouldn’t we prevent things like this from happening?

Valid concerns as these may be, we should also be careful about going the wrong way in the other direction. At some point it becomes not OK to force a religious institution to pay for some bodily procedure that is against their religious convictions. For example, what about forcing Catholic institutions to pay for abortions? If a religious institution is religiously opposed to tattoos, what about forcing them to pay for tattoos? Both of these seem to go too far; clearly there ought to be limits as to what degree the government should be allowed to infringe upon religious freedom.

So where should we draw the line? Wherever that line is, it seems to me that it would stop short of forcing Catholic institutions to subsidize people’s sex lives when the sexual activity in question violates the institution’s religious convictions. While a health insurance system paying for contraceptives would be nice and I would prefer that Catholic institutions support it, the fact remains that contraceptives are inexpensive and going without them is hardly life-threatening. Contraceptives also have a free, non-medical alternative: not having sex. It may be displeasing to use that alternative, but is sexual activity really something that religious institutions should be forced to financially support, particularly when the sort of sexual behavior in question is against their religious beliefs? Disagree with the Catholic institutions if you wish, but forcing them to financially subsidize such sexual behavior seems to be going too far. At some point religious liberty has to be respected, even when it comes to religious beliefs we don’t agree with.

[1] It’s possible that my critics will say that I like the word “maverick” too much. Such critics are probably right, and in my mavericky maverickness I will continue to maverick my maverickhood and maverick maverick maverick...

[2] Suppose we had two groups that wanted to be student organizations at some public university: “Religious for Sexual Morality” (RSM) and “Religious for Free Love” (RFL). RSM allows its voting members to be gay but requires all voting members to believe that gay sex is wrong (so if a person engaged in gay sex, that person couldn’t be a voting member if they also believed there was nothing wrong with the sexual activity). RFL requires its voting members to believe gay sex is morally permissible. In the CLS v. Martinez Supreme Court case, Hastings College of the Law gave three different reasons for excluding the Christian Legal Society (CLS) from a “registered student organization” (RSO) status (which basically relegated the group to kind of second-class status), but one was a Nondiscrimination Policy (endorsed by Justice Stevens in a concurring opinion) that would permit RFL but ban RSM on the grounds that RSM discriminated against homosexuals, even though RSM actually allows all its members to be gay. How does that work? In the actual court case, CLS, like the fictitious RSM, did not allow people who engaged in gay sex become voting members if those people believed there was nothing morally wrong with it, and permitted voting members to be gay. Naturally enough, CLS argued they did not exclude individuals on the basis of sexual orientation but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” Remarkably, the Opinion of the Court dismissed this, basically saying that this restriction is close enough to be properly called discrimination. Disagreeing with Justice Stevens, in the dissenting opinion Justice Alito wrote that regarding CLS’s viewpoint on sexual morality (viz. that sexual conduct outside marriage between a man and a woman is wrongful),
Hastings would not allow CLS to express this viewpoint by limiting membership to persons willing to express a sincere agreement with CLS’s views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group’s beliefs. A Free Love Club could require members to affirm that they reject the traditional view of sexual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination.
One last thing: I mentioned the college gave three different reasons to deny RSO status to CLS, but that’s because the reasons for excluding CLS from being an RSO changed twice, hence three different reasons. Alito noted the shifting reasons and cited other evidence suggesting that the policies were used as a pretext to unlawfully exclude CLS, concluding “If the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.” If this case has captured your interest (as indeed it did mine) you might be interested in seeing the full decision, including Alito’s scathing dissent.